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“Cultural competency” is important for your financial bottom line

Monday, June 24, 2013
posted by Douglas Keene

cultural competencyThe “times they are a changin”. Being culturally competent is no longer just a quaint, politically correct idea. It can make the difference between success and failure.

The new issue of The Jury Expert has an article from Michelle Ramos-Burkhart on cultural competency and your law practice’s financial bottom line. In essence, she says our world and our country are changing demographically. And our litigation practices often have global implications rather than local or national. Our ability to communicate well (without uninformed and unintended insult to our international clients, witnesses, and jurors) is essential to representing and retaining clients. A lack of cultural competency also puts us at risk of losing our culturally diverse employees as well as losing our employees who value diversity.

We began doing IP work about 15 years ago. At that time, foreign corporations were not the norm for our practice. But that soon changed. Now our patent and complex commercial cases often involve at least one non-US party and sometimes numerous. We find ourselves not only listening for our mock juror biases against “them” but also paying attention to the unique cultural experiences and expectations from our clients that add dimensions to the trial story that are interesting and compelling. Sometimes the reactions are provincial, other times they are somewhat flattered to have an impact on global business.

While in the past there has been predictable resistance to seeing foreign companies or entities as having equal footing in the US courts, jurors appear to be catching on to the new normal. And they understand that they want the same treatment for US companies when they are doing business overseas. The anti-foreign bias is strongest in cases where the country of origin is seen as not treating US companies fairly.  In the past year, we’ve heard the following comments from mock jurors in cases with an international party.

“He seems very aloof and precise. Unemotional. Perhaps it’s a cultural thing since he was born in South Africa.”

“Asians are always knocking off American ideas. You can’t trust them. It’s part of why our economy is in trouble.”

“If the parties’ national affiliation were reversed, I would say this is typical since the Plaintiff’s country’s citizens rip us off all the time. But these Defendants are from Canada. It’s confusing to me. I wish it was the other way around so I’d know how to make sense of it.”

“None of the Defendants speak English. How am I supposed to assess their honesty when they don’t seem knowledgeable?”

Jurors are sometimes aware of their biases and other times blissfully ignorant of them. Mock juror reactions to the case parties often lead to frank conversations about culture, cultural stereotypes, and cultural biases with our clients (the attorneys) and their clients (the international party’s representative). In those conversations, we model a curious and respectful dialogue to facilitate communication and comfort with our differences.

As we facilitate juror discussions during research, we pay close attention to assumptions and biases and test different methods of sharing information to see what helps jurors think with care. What helps them move beyond reliance on stereotypes and assumptions?

As we carefully analyze the data gathered from those pretrial research exercises, we look at how biases color the case narrative and influence the outcome.

As you plan the case narrative (the story of why it happened, not just how it happened), pay special attention to telling the story in a way that elicits useful values and perspectives. Do you want the jurors to identify with the foreign entity or party? Do you want to help jurors see the party as “like them” rather than as “foreigners who are not to be trusted”? When we are working on behalf of a foreign entity, we want jurors to continue to see our clients as international but we want to minimize their reaction to our clients as “them” and have them be seen more as “like us”.

One example of this involves Chinese clients. I’ve worked on several cases for entities with Chinese witnesses or for Chinese companies, and they have some interesting twists.

  • Language. Mandarin (the official language of Mainland China as well as Taiwan) is structurally different from English or European languages, and it shows up in how native Mandarin-speakers speak English. A lot of Mandarin grammar is contextual. There are no plurals–you can tell whether it should be plural by the other words spoken. Therefore, Mandarin speakers frequently struggle with plural forms in English. The use of tenses in English is very odd to Mandarin speakers, who tell from the context of the sentence whether it is in the present, past or future, and struggle with changing words just to reflect something that is already obvious in a sentence.
  • Which China? If we are working for a Taiwanese client, the emphasis is on their role as a key ally to the US in Asia, how they have mandatory military service, and how they pull their weight. If our clients are naturalized American citizens from China, their story includes their goal of coming to America, the struggle they had growing up under very difficult circumstances, and an effort to get them to be less stoic than their history and culture demand.
  • Documents.  Everything is more difficult if you can’t appreciate the nuances of language. We recently had a Taiwanese witness who was accused of being deliberately misleading in her deposition and even her trial testimony because she testified inconsistently with the document contents, or she couldn’t recall what the document said. All of the documents were written in English, because they were to be filed here in the US. She was a good business person but spoke no English, and hadn’t committed to memory every word on every document. And under stress, she made mistakes. She conducted the better part of a whole deposition under an incorrect assumption about when a document was created, because the date on the document (which referred to something else) was perceived as being the signature date.

In closing, we planned to talk about that confusion (the case settled the day beforehand), and how even the best intended person can fall victim of translation error and her effort to try to comply with questions deserves respect. We would have shown a Mandarin-language document on the screen as we talked about how hard it is to reconstruct a document from our memory, even if we’ve seen it a good number of times. The attorney planned to point to the screen and pose the question

How many of us would be able to handle close questioning about this document? Would we deny having seen it? Would we say that we disagree with it? What if we couldn’t translate it, or didn’t have the translation handy?

The document on the screen is then disclosed as a Mandarin translation of The Declaration of Independence. And on closer scrutiny, the Mandarin version is only translatable to the jury where it shows the date in western numerals: July 4, 1776.

As we approach voir dire, we focus on values and attitudes and beliefs rather than demographics of empaneled potential jurors. It isn’t about de-selecting white males or African-American women. It’s about who shows us through their attitudes, values, beliefs and group affiliations that they can be open to our story and who hints (based on those same variables) they will not be open to understanding the story that is ours to tell.

In truth, it isn’t a lot different from what we do in every case. There is always bias. It’s just a bit more complicated in international cases. And that is why the idea that cultural competency is essential appeals to us. It isn’t just PC anymore. It’s about your financial bottom line.

Ramos-Burkhart, M. (2013). Do you see what I see? How lack of cultural competency may be affecting your bottom line. The Jury Expert (May)

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